36 Tex. 307 | Tex. | 1872
The appellants in this case were attorneys for Ennis & Co. They obtained a judgment against Heiskell in the District Court of Washington county. Heiskell resided in Fayette county. Ennis & Co., by their attorneys placed in the hands of Irvin, the sheriff of Fayette county, an execution sued out upon their judgment against Heiskell.
Irvin, by official negligence in not returning the execution at the proper time, became liable to Ennis & Co: for the judgment and costs, and on motion in the District Court of Fayette county, judgment was rendered against him and his securities. And the securities, the appellees in this case, paid the debt to Sayles & Bassetts, the attorneys of Ennis & Co., they retaining fifty per cent, of the amount for professional services in the two eases.
Afterwards another execution was sued out against Heiskell, and placed under the control of one Gould, an attorney. Heiskell paid the entire judgment to Gould, who, retaining twenty-
Although these transactions occurred prior to the Act of February 5th, 1858, the securities of Irvin, after having paid the debt of Ennis & Co., were entitled- to be subrogated to the rights of the judgment creditor, and if Sayles & Bassetts enforced the payment of the judgment a second time, it certainly cannot be contended that their clients were entitled to have their judgment paid twice. Nor was Heiskell bound to pay it twice, yet he would have been bound on the original judgment to the appellees, they having been compelled by law to pay his judgment for him. It cannot be said they voluntarily made themselves his creditors.
But the appellants claim that they are improperly sued ; that if anybody is liable to the appellees it is Ennis & Co.; and that they are improperly joined in the action against them. This is not a case in which the maxim respondeat superior can be made to apply. If A, improperly and without authority from B, collect money from C which belongs to B, A will hold the' money as trustee for B, and he may be sued by B.
It was not necessary to join Ennis & Co. in this suit, but certainly Sayles & Bassetts have no right to complain of the misjoinder*, and if the judgment is against all the defendants below, it is not an error on account of which we would set it aside; and it is perhaps unnecessary that we should give any reason for this view of the case further than to remark, that both Ennis & Co. and Sayles & Bassetts must have known that they had no right to a double payment of the judgment.
We need not discuss the question of jurisdiction; the parties have sufficiently blended themselves in this transaction to give the District Court jurisdiction in the county of either’s residence.
The judgment of the District Court is affirmed.
Affirmed.
